PM (R on the application of) v Secretary of State for the Home Department

Victims of modern slavery receiving asylum support under section 98 of the Immigration and Asylum Act 1999 may fall within guidance requiring total financial support of £65 per week where their asylum support includes modest cash payments. The Secretary of State cannot avoid that obligation because payments are made through accommodation contractors: the statutory duty to meet essential living needs is non-delegable.

A substantial reduction in established trafficking support requires adequate inquiry into its likely impact and the recovery needs it is intended to assist. The Secretary of State breached the Tameside duty by adopting a lower interim rate without such inquiry. The court rejected the broader challenge that the lower rate was irrational or that the claimant’s essential living needs were unmet.

The claimant, a victim of modern slavery and asylum seeker, was accommodated in a full-board hotel while supported under section 98 of the Immigration and Asylum Act 1999. She received trafficking support, but the Secretary of State stopped those payments in July 2020 and later reinstated them at a lower rate under amended statutory guidance.

The claim challenged the cessation decision, the amended guidance, and the adequacy of support for essential living and recovery needs. The proceedings were stayed pending the Court of Appeal’s decision in JB (Ghana). The central issues were whether the claimant was entitled to the guidance payment, whether the reduction was adopted lawfully, and whether her essential living needs were met.

1. Ground 1 succeeded. The claimant was entitled under paragraph 15.37 of the Guidance to total support of £65 per week, less the financial support received under section 98. The provision referred without differentiation to support under sections 95, 98 and 4 of the Immigration and Asylum Act 1999.
2. The claimant’s hotel accommodation was provided through the asylum-support system. The hotel made cash payments of £5 per week towards essential living needs, alongside in-kind provision. Those payments were financial support under section 98, even though they were made by the accommodation contractor. The Secretary of State’s duty to provide essential living support was non-delegable, although it could be discharged through contractors.
3. The claimant therefore received £40 per week during the relevant period, comprising £35 in recovery support and £5 towards essential living needs. She was underpaid £25 per week between 13 May and 27 August 2020.
4. Ground 2(a) succeeded. There was no general common-law duty to consult. However, the Tameside duty required the Secretary of State to take reasonable steps to acquaint herself with relevant information. The decision to reduce support from the previously paid £35 to £25.40 was a substantial reduction, not merely a clarification of an existing policy. The Secretary of State failed to inquire into its impact or the recovery needs it was intended to assist. The amended guidance was unlawful.
5. Ground 2(b) failed. The Secretary of State had to provide some financial assistance beyond essential living needs as part of the package assisting physical, psychological and social recovery. The obligation was to provide modest assistance, subject to rationality review. The rate of £25.40 was not shown to be irrational.
6. Ground 2(c) was not determined. The discrimination issue had become academic after later guidance introduced a single recovery rate. The court rejected the submission that relief should nevertheless be refused under section 31(2A) of the Senior Courts Act 1981.
7. Ground 3 failed. The evidence did not show that the claimant’s essential needs for toiletries, laundry, food, drinks, clothing or travel were unmet. Her need for private communication was not met in kind, but was met overall through the combined trafficking and asylum-support package. The claim succeeded on Grounds 1 and 2(a), and the remainder was dismissed.

This was a first-instance judicial review. The claim had been stayed pending JB (Ghana) v Secretary of State for the Home Department, [2022] EWCA Civ 1392.